NJ Supreme Court Rewrites Standard for Child Relocation

The New Jersey Supreme Court on Tuesday overturned a 16-year-old precedent that has been widely used to determine whether a custodial parent can relocate children to another state over the objections of the other parent.

By Michael Booth|August 08, 2017 at 03:54 PM

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Justice Anne Patterson (Photo: Carmen Natale/ALM)

The New Jersey Supreme Court on Tuesday overturned a 16-year-old precedent that has been widely used to determine whether a custodial parent can relocate children to another state over the objections of the other parent.

In a unanimous ruling in Bisbing v. Bisbing, the court reversed its 2001 holding in Baures v. Lewis, which said a custodial parent could relocate to another state with a child so long as the move was made in good faith and was not “inimical to the child’s best interests.”

Justice Anne Patterson, writing for the court in Bisbing, said trial judges should now simply determine whether a relocation would be in the “best interests” of the children involved.

Patterson said the abandonment of the Baures standard was “not lightly” done, in part because social science research—which had been considered a key factor in deciding Baures—is inconclusive at best, and a child’s best interests should now be the guide.

“We find such justification for a departure from precedent in this case,” Patterson said. “Our custody statute clearly envisions that a custody arrangement will serve a paramount purpose: the promotion of a child’s best interests.”

The case involves a divorced couple from Stanhope: Jaime Bisbing and Glenn Bisbing III, who were married in 2005 and divorced in 2014, according to the opinion. They are the parents of twin daughters, now 10. As part of their marital settlement agreement, Jaime would be the custodial parent, and Glenn would enjoy considerable parenting time. The agreement said the children would not be relocated if one of the parents objected.

According to the ruling, the arrangement was progressing smoothly until Jaime announced that she was marrying another man, Jake Fackrell, a Utah resident, and that she would relocate with the girls to Utah.

A trial judge, citing Baures, granted the application, and Jaime and the girls moved to Utah. Glenn appealed.

The Appellate Division vacated the trial judge’s ruling in part, suggesting that Jaime may have entered into the agreement in bad faith because she had been dating Fackrell before the divorce became final.

Patterson said that while the underlying issues in the Bisbings’ case must still be resolved, the court took the opportunity to revisit Baures.

“We recognize a ‘special justification’ in this case to abandon” the standard set in Baures, Patterson said.

The court in Baures—a unanimous ruling written by Justice Virginia Long, since retired—said social science research had demonstrated that a child fared better when the custodial parent’s interests were satisfied, so long as there was no detriment to the child.

But years later, research on the topic has reached no solid consensus, Patterson said, adding that most states have not adopted the “best interests of the child” standard when confronted with the issue of relocation.

“[T]he standard adopted in Baures did not represent a lasting trend in the law,” she said.

“For the court to do this, it required special circumstances,” said Nunn, of Denville’s Einhorn, Harris, Ascher, Barbarito & Frost. “It means you can’t relocate without focusing on what’s in the best interests of the children.”

Jaime Bisbing’s attorney, Paul Townsend of Townsend, Tomaio & Newmark in Morristown, could not be reached for comment.

The New Jersey State Bar Association, arguing as amicus, urged for Baures to be overturned.

“The idea that a happy mom means a happy child is wrong,” said Jeralyn Lawrence, a member of the bar’s Family Law Section who has been working to overturn Baures.

“The decision means that both parties are involved in the outcome,” said Lawrence, of Bridgewater’s Norris McLaughlin & Marcus.

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